If an elder patient with mobility issues wants to shower, after being warned of the dangers, falls, and gets injured, who is liable? Caregiver or patient?

Any caregiver injured in any way by ANYTHING and for ANY reason has a claim against the umbrella policy of the patient if the patient is a homeowner and insured, and indeed if she is not insured.
HOWEVER that may be negated by the fact that the patient is unsafe to shower and the caregiver KNOWS this. In that case, the caregiver, who has a duty to know (and you indicate DOES know) has done something that may/could injure her patient, and yes, she may be sued. Generally no such suit would be carried forth against a caregiver, who likely doesn't have deep pockets OR insurance to defend herself.
Your caregiver is working on her own, or with agency. If with the latter she can take this to her supervisor and she will be told NOT to shower patient. Also know that it is likely this agency that would be sued if showering done at their insistence. If caregiver isn't with an agency, but on her own, sorry but the answer is NO, absolutely not. No shower. If she is fired for this she is well shed of this client and the world currently is full of folks in need of her care.
Best wishes and good luck, but advise this caregiver that the answer is "NO!" period and full stop.

I know of a couple who provided free in-home care (including transportation) to a lady for many years as part of a religious outreach. The couple was retired and appeared wealthy as well. They eventually started backing away.... and it started with bathing. They told the lady they could not continue bathing assist due to "liability" reasons. Period. Even though there was mutual trust and respect overall between the couple and the elder, they STILL feared liability should there be a fall or other issue. If anyone would know about this, I believe that this couple would. Sometimes it's all peaches and cream until there's an injury and then it would be "who authorized YOU to bathe my mother?"

Putting the whole liability issue aside...
Why is the client falling? There should be grab bars, a non slip mat on the shower floor (or better 3M safety strips), and a sturdy height adjustable shower chair (or transfer bench if needed).
I can't see how the time of day makes any difference unless they are attempting to shower solo after the caregiver is off duty.
And frankly I can't see that a properly done sponge bath would get your friend's day finished any more quickly than a fast shower.

Adding to Alma's good advice, we addressed this situation when considering hiring a caregiver. I called our liability coverage agent, and also relying on experience decades ago with negligence cases, this is a basic summary:

1. Our homeowner's insurance would NOT cover any injuries sustained by a caregiver while on the premises. Factor: she would have been invited to be there, and perform services. She's an employee, and should be treated as such. Insurance coverage distinguishes between invitees and those who are not.

2. HO (per our agent) would NOT cover anyway; we would need to take out a commercial liability coverage policy with specific liability clauses for paid employees. At that time (about 5 years ago, the cost would have been about $700 annually), and definitely would increase annually.

We decided against hiring her, especially since based on my observations of her, she was a very young and immature individual who needed guidance.

3. Basically, as I understood the situation based on the facts including that our coverage was typical HO, and was NOT professional, with a liability clause, we would be responsible if the caregiver was injured. But we weren't interested in getting involved with commercial coverage with a liability clause.

4. Filing a claim against a caregiver who's not insured for the accident would likely go nowhere, other than requiring the caregiver to retain an attorney to challenge the lawsuit. And... most likely encouraging the caregiver to find a new employer.

'FULL STOP' is right. Your friend should be giving notice, including stating that she is being put in a position to perform duties which she knows are dangerous, and the client knows or should know that as well. She should provide that qualification in writing, with a copy for the client, and the original for herself.

duplicate post, sorry

Not for nothing, but what is the point of hiring a caregiver if the caregiver is not willing to give the patient a shower for fear of 'liability' and worry over a 'bad situation'?? Why is your friend a caregiver in the first place if she is feeling unqualified to help an elder take a shower? Why is this elder 'clearly not making good decisions for herself' by wanting to take a SHOWER in the evening before bed? It's not like she's wanting to drink a pint of whiskey first and THEN wanting to take a shower. If your friend is 'so exhausted' at the end of her shift, then she's working too many hours and needs to say so, asking for a shorter shift, or just quit the job entirely, imo.

I think your friend needs a new profession and this client needs a different caregiver who's willing to help her take a shower in the evening.

If you want LEGAL advice talk to a lawyer. There is a lot of advice out there on how to help someone shower...my first thought was where's the shower chair? As the patient has Parkinson's Disease I would also suggest making sure the patient is in her "On" phase and not her "Off" phase of medication. This makes anything easier to do for a person with Parkinson's.

This is a tub with a shower. A walk-in is a shower with a small lip or none at all. This woman should be using a shower chair. They come where the seat is on the outside of the tub and it slides into the tub.

One thing worth trying would be to change the ‘habit’ to showering in the morning when both of you are less tired. Only workers with very dirty jobs really need to shower in the evening – and ‘pit-head’ showers let some of them shower right at the end of a shift. If she is using diapers in the night it makes sense to clean up for the day, or perhaps you deliberately spill something sticky on her to get her used to the morning habit. I shower in the morning, my daughter showers in the evening, and there is no real reason for either habit.

Another thing worth doing would be to get a safety assessment from the Council (or whatever agency provides them). Marble bathrooms can have non-slip mats (even marine carpet, which is designed to get wet), grab rails etc.

Liability is not the same thing as insurance, though financially of course there is an overlap. Who is your employer? If it’s an agency, you need to get them to agree in writing or to prohibit what is happening, and to take responsibility. If it’s another family member, you need them to agree to what is happening, and to indemnify you in writing in case of any accident.

If it’s the client, you really do have to stand up to her. Whatever she says to you now, a lawyer will still sue. We have many cases where workers have agreed to no tax, no workers compensation insurance, and they or their employer is still found liable.

If you don’t know who you are working for – it is a regular bank transfer, and where it comes from isn’t clear - you certainly need to sort it out.

I would label this 'risk taking' behaviour. Sure it's just a shower, but the PD complicates & adds risk.

Doesn't mean the lady needs to be wrapping in cotton wool or never shower.. it's a tricky thing (one of many to come) but hopefully solvable with common sense.

But the OCD adds another layer & can override sense. PD + OCD could effect reasoning without having a formal dx of Dementia.

Where I live I think this scenario would fall under *Duty of Care*.

'A duty of care is a legal obligation (that we all have) to take reasonable steps to not cause foreseeable harm to another person or their property'.

Pretty wide & wishy-washy isn't?

'A duty of care is BREACHED when someone is injured because of the action (or in some cases, the lack of action) of another person when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way'.

A charge of NEGLECT could be made under Duty of Care - only if injury or harm is sustained.

Now to this case..

I agree with Alva, if I was a nurse & this was my patient in my workplace & I felt it was unsafe - no, I would not proceed. This would be based on clinical observation skills, training & experience.

Providing a shower chair and/or a 2nd staff member MAY increase safety enough to proceed. I could also seek advice from a superior.

Now in a client's home, I'd openly discuss my reservations & what safety could be introduced ie shower chair, grab rails (if none). If refusal of a shower chair - I'd ask why? Feeling unsafe sitting to stand? It 'looks bad' or habbit? I'd move to discussing the *common sense* of the situation. Treat her with respect as she is The Boss. But explain why you wish to discuss or may need to refuse.

It may be a compromise is needed that is exeptable to both. Eg A stand up sponge bath with wipes.

It may be the caregiver suggests the client has an OT visit & assess. PD is progressive. Changes to her routine will be needed in time. Equipment can make life easier for her - keep her living her way for longer. Having an OT or PT in her team will be useful.

A couple of things your friend should consider.

10-12 hours days are not part time. Hopefully she is being well compensated.

She has the right to tell her client that showers have to be done earlier because she is to tired after a 10 hour day to do this safely.

She should NEVER, NEVER try to stop a fall. Often times it causes more injury to the one falling and the human mat.

She should demand that workman's compensation and unemployment are in place. As well as all the other employee benefits to be legal and protected.

If she chooses to work without all this in place, she should definitely have her own health insurance and get an AFLAC policy to help cover living expenses in the event of an injury.

Good luck figuring out if she has legal liability or is protected.

Just an FYI. Facilities aren't responsible for falls resulting in injury to residents.

If a caregiver can do the shower assist earlier in the day without safety concerns, then she should be able to do it whenever in the shift.

Do I guess correctly that part of the problem is the client is inflexible regarding changing the shower time?

Many like to be clean to go to bed. (Some of my LO's did, but had to be flexible & change when help was needed).

It may be she likes to shower morning AND night, as "germaphobe" was mentioned.

I would still try for a compromise as Plan A - for the lady to have a mini wash to feel hygienic (if this is her aim) & leave the full shower for when at her lowest falls risk time.

She may be super cautious of a UTI. (I have had many & get that!)

Plan B could be a slightly shorter day shift & add a 2nd caregiver shift for the evening.

I think the problem here is your friend is pretty new to this. Ten to 12 hours is a long shift. Her clients wants are important but even for a seasoned aide, 10/12 hrs is a long shift. I hope she knows the Labor Laws of her State. The Federal government does not recognize aides as being self-employed. The client must take out payroll taxes and match her SS deduction. She gets paid for time and half after 40 hrs. If with an agency, they do this.

All these concerns are very valid. While an attorney can answer the legal questions, no one can ever predict what a jury will say if it results in a lawsuit. It seems liability often is neither black or white. I would rather err on the side of caution while searching for new techniques, schedule changes, assistive devices, etc. to see if there is a way help the client and minimize the risks. Parkinson patients can be tough to care for. As the disease progresses, their condition and abilities can get worse then improve day by day and even hour by hour depending on their medication routine. The only thing predictable about Parkinson’s is it’s unpredictability.

Unless I missed it in all of these responses, which is entirely possible,
Parkinson’s is, in fact, a combination of different types of Dementia. A person with this condition should have a healthcare Power of Attorney or Trustee that is making decisions for this elder.

Who does her banking?? Who pays her taxes??? Who files her taxes every year??? THAT’S who she needs to get in touch with. The person who handles her money will more than likely know who the healthcare POA is. I was both for my loved ones as well as the Trustee on their Estates.

It is imperative that you find out who that person is. THAT person is the one who is liable. He or she is the one person who is responsible for ALL decisions that are made with regard to this lady. If she doesn’t have one, I would call the family, and tell them that one of them MUST step up to take control.

I, personally, would not stay in this situation, because:
1. A person with dementia hired her.
2. There seems to be no one else in control here.
3. Should something happen to her, THEN family will be crawling out of the woodwork to sue. Especially if your friend is not with an agency and is doing it as self-employed.

The fact that the caregiver may be untrained in dementia-related care is a HUGE no-no, and family needs to be notified asap. If nothing more than to let them know that she feels that their elder needs more care than she can provide. However, there are some who stay simply for the money and do not care what happens to the elder.

This should not go on another day.

Just my little 2 cents. Not much, but after 14+ personally, and now professionally, that’s what I think.

I’m confused.

your friend is part time but works 10 hr shifts?
missing something. Is the caregiver job IN ADDITION to another job?

my 2-cents
determining health (I.e hygiene) needs isn’t the job of part time caregivers. I had to sign a contract for mom at assisted living, clearly outlining scheduled meals, showering, meds, housekeeping etc. I didn’t let a part time aide tell us what they would do. Nope.

if the elder wants a bedtime shower, maybe that’s the only way she can sleep well after, ya know, 80-90 years?

the whole ‘she might fall, I think it’s unsafe’ vs the I’m exhausted at ‘end of a long shift’ seems questionable as to WHY exactly it’s a bad idea. Germaphobe? Bad attitude? Those descriptions seem to be blaming the elder. For wanting to shower. Which she’s paying for.

spill something on her intentionally to change her habit?? What? As a family member I’d boot you out the door.

My first thought, like others, is you (SHE) needs to talk to a lawyer/insurer AND family members/care directive/doctor about these “concerns”.

A new to the field person? Heck no, I’d assume her liability is extremely high if she’s making all these decisions on her own. Is she trained? Is there an agency? Or is she just “helping out”???

My second thought was maybe this elder needs additional help if indeed 10-12 hours are required FOR her. If this is an extra income job for “friend” and she cannot or will not provide the assistance, she needs to re-evaluate the situation

Gramma wants a shower at bedtime? Give her the help she needs to allow the sliver of dignity she is asking.

Shower chairs! (Google "shower chairs for elderly.")

Seems there's a compromise to be had; perhaps she doesn't need the care-giver for showering!

Shower safety handles (Google "shower suction safety handles.") are very helpful, but they must be checked before each shower to make sure the suction is still holding.

How adamant is she about showering with or without human assistance? The alternative would be an Assisted Living arrangement where there is staff 24/7.

Non-skid mats on the floor of the shower. A shower chair. Does the shower have a pull-down hose that can be used while the client sits in the chair? If so, the caregiver should assist her. If not, make the shower fixture more accessible and the caregiver should assist her with her shower. The caregiver should keep a journal of all of her concerns and recommendations. Is there another family member she can discuss this with? And it would be good to know the legal liability, and whether a disclaimer statement would be enough protection.

The client is free to shower if she understands the risks involved and is able to decide to go ahead regardless.

Your friend, as a trained caregiver, is free to refuse to support an activity which poses a clear and unacceptable risk to her client or herself.

And it's not like there isn't any compromise possible. The shower could be done earlier in the evening, and the client dressed afterwards in warm nightwear. Or, there are shower commodes that can be positioned in the shower and will allow the client to have her shower seated. Consult an occupational therapist about the best risk reduction plan.

In your friend's position, we would decline to support a shower (or any comparable request) that seemed risky, document the reason, and feed back concerns to the office. The office would then speak to the client and work out a way to support her preferred routine. But I'm guessing that your friend doesn't have the back up of an authoritative employer?

That correct answer really depends on the country, province, and even town/city that the client resides in. Ask a local lawyer.

To reduce risk of falls:
put a shower chair with back and arms into the shower,
put down a non-skid mat over the entire floor of the shower,
use a wheelchair to get client as close as possible to the shower chair before "transfer",
get a handheld shower device with a shut off for the water installed (very easy to do) so caregiver can turn water on and off during the shower,
AND probably get some kind of disclaimer signed by the client that client has been warned of hazards of showers given his/her condition and insists on this type of activity... and that the client is mentally competent according to his/her doctor (give doctor's name, client must sign in ink, and date), AND will not hold the caregiver liable for any injuries as a result of this activity.

When my mother developed mobility issues that made showering while standing unsafe we purchase a shower chair that assisted in entering the shower and being safe furing the shower. The chair had hand holds on each side and turned into the bath where mom could sit down using the grab bars installed on the bath wall. Then I disengaged the chair stop and the seat turned 90 degrees and slid into the tub as I gently assisted mom is getting her legs over the tub
wall. Once the chair seat was fully within the bath the mechanism engaged and the seat was locked in position for a shower using the adjustable (or hand held) shower head. My mom liked to stand at one point during the shower (using grab bars) and have me spray her back and rear end. This worked well as long as mom could stand and turn 90 degrees to sit down in her wheelchair or shower seat. When she became unable to do that, mom allowed me to wash her in her chair or bed.

Once every few days a family member assisted us in using the step in tub since the whirl pool action relieved a lot of mom's pain from spinal stenosis and osteoarthritis. We were very lucky her grandson lived next door and was strong enough to pick my mom up and carry her to the tub seat. I would work her nightgown off, close the tub and run her bath. When she was done, we would dry her off and put on a clean gown, then her grandson would carry her back to bed.

Although my mother had MCI and some dementia like confusion at times, she remained adaptable to reality and we were so lucky to have the support of family members who lived close by. Near the end of her life when she could no longer stand (and basically became bedbound because I could not safely transition her alone) I had reluctantly began the arrangements for an MC but mom died before that happened.

I hope the bath chair (available on Amazon) might help now and the client becomes more adaptable in time.

gmindock: I cannot fathom how an individual with Parkinson's can take a late night shower with the assistance of this FULL TIME caregiver. With the insistence on standing in a shower after her caregiver has already clocked in for ten hours and both are tired, the tremors associated with the disease make this a risky proposition. A couple things must be amended - #1 A shower chair should be purchased. #2 Your caregiver friend must insist on showering her patient much earlier in the day when both are less tired.

Hmmmm...

A one-foot lip? That is basically a tub, not a walk-in anything.

Is your friend working for an agency or being directly paid? I ask because there will be different advice based on the employment situation.

If your friend is being directly paid, is there a caregiver contract in place, and are payroll taxes being taken out of each check? If not, an agreement needs to be in place regarding the caregiving duties, safety guidelines, compensation rates, what to do in emergencies and who to contact, etc.

Again, sound advice can be given after more info is disclosed.

I've been debating whether to answer this one or not. There is a lot to unpack in the original question and some of the answers have been way off point - but maybe I can make a difference and provide some useful information.

I manage a boutique home healthcare agency in Boca Raton, FL, and deal with similar issues all the time. It seems like there are three questions or concerns to address:
1) If the client gets hurt, who is liable?
2) If the caregiver gets hurt, who is liable?
3) Should the Caregiver be showering her client before she goes to bed?

I am not a lawyer and I don't know the laws in your state. Please just take this as my personal opinion, not professional advice. Okay?

If the client gets hurt, who is liable? Unless the caregiver pushed her, tripped her, or pulled the rug out from under her, the caregiver is probably safe - at least from criminal charges. In America, anyone can sue anyone for anything. It's not likely any lawyer would take that case because the chance of a significant recovery would be small. It would be difficult to access blame and there isn't much punitive damage to claim on a 90-year-old. I explain to my Caregivers that the reason they need to have liability insurance is in case the children decide to file a civil lawsuit for any reason.

Pro Tip: If you get the sense that children are like vultures waiting for the inheritance and don't have much interest in mom's care, they are probably the ones who will be lawsuit happy. Personally, I would turn down that client...

Fortunately, Caregiver liability insurance is cheap ($88/year for $100,000/$300,000 coverage at www.cmfgroup.com) and will pretty much allow the caregiver to hand the case over to the insurance company and never think about it again. The Caregiver can be working privately but does need to be licensed or certified in their state to qualify.

If the caregiver gets hurt, who is liable? Probably the caregiver. The client's homeowners insurance may or may not cover the injury, and (in Florida) Caregivers who work as independent contractors (for Nurse Registries) are not covered by Workman's Comp. Caregivers that work for Home Healthcare Agencies are. If the (false) security of Workman's Comp is essential, you should choose an agency - and in my experience, you will get lower quality care at a higher price, but we can fight the Agency vs. Registry fight another time.

Should the Caregiver be showering her client before she goes to bed? The answer to that is quite simple... Yes. The caregiver is there to provide what's needed and wanted. You made it clear that the client is not demented. All seniors are fall risks. All seniors deserve to be bathed. If for whatever reason, the caregiver doesn't feel comfortable providing what the client needs or wants, they should step aside and allow someone who is more capable, professional, stronger, younger, or whatever to provide for the client.

And with that said, even if Hercules was her caregiver every possible precaution for the client's safety should be taken. Shower mats, shower chairs, grab bars, etc. are mandatory. If it is safer for the client to enter the shower in shoes or slippers, the caregiver should remove them after they are in the shower. If the client has a bathtub, they can have the tub wall cut out (google "bathtub cut out for seniors") so there is a 2-4" step, not the entire tub wall. The cost is between $400 for DIY - about $1500 for it to be done professionally. I have done this for clients with great success.

If the client is not willing to participate in smart safety measures, her POA or adult children need to take charge. Just get the work done. The first time she grabs onto the bar and feels a tad bit safer will be the last time she complains about it. Same with the shower seat, mats, and everything else. Old people can be stubborn, but they are also really smart people!

I am old and stubborn. I hope you think I'm smart. Did I make a difference for you? ~BRAD

Having made changes for husband with PD required installing bars, bench at the supervision of occupational therapist, we already had big walk in shower.
I don‘t think it is a good idea showering at night, many people with PD get worse at night, not as steady, depends of course on meds, as each person with PD is different.
I would definitely address her OCD during dr visit.